1. ' The appellants along with one Ali Gohar were charged under sections 302, 323, 324,',148, 149, P.P.C., and tried before the learned 1st Additional Sessions Judge, Sukkur, who has convicted' the appellants and sentenced them as under:-
(1) Under section 148, P.P.C.: ' R.I. For 6 mqnths and tine of Rs,1,000 or in default for 3 months.
(2) Under section 302/249, P.P.C.: 'Imprisonment for life and a fine of Rs,5,000 or in default R.I. For one year, in addition to a compensation of Rs,5,000 or in default R.I. For 6 months.
(3) Under section 323/149, P.P.C.: ' R.I. For ornu year and a fine of Rs,1,000 or in default R.I. For 3 months.
(4) Under section 324/149, P.P.C.: ' R.I. For 2 years and a fine of Rs,1,000 or R.I. For 3 months. ' while co-accused Ali Gohar was acquitted vide judgment, dated 27th February, 1988.
2. ' Brief facts giving rise to the present appeal are that on 27th November, 1981 one Muhammad Siddique lodged report at P.S. Ghotki, District Sukkur, inter alia alleging therein, that Mst. Zulekhan daughter of Ghulam Hyder Kolachi was engaged with Hakeem son of Darvesh. They were demanding hand of. Mst. Zulekhan from Ghulam Hyder but her relations refused to agree and ultimately she was married with Rabban Kolachi. Yesterday at Somhani time he went to the machine of Ali Gohar where he saw Haji Alif, Imamuddin, Fazil, Ghula Hyder and Ibrahim sitting with Ali Gohar. Today in the morning he was sloughing the land near the machine of Ali Gohar, where suddenly he heard cries coming from the machine and saw that Haji Alif accused gave hatchet blow to his cousin Alim, accused Imamuddin gave hatchet blow to Abdul Hakim son of Alim on the heads Fazil, Ghulam Hyder and Ibrahim gave Lathi blows to Alim and Abdul Hakeem. He gave Hakals' and raised cries, and went running at the Wardat. On his cries Chakar son of Ahmed Khan also came running and witnessed the incident. Thereafter all the accused ran away raising slogans. Ali Gohar was present at the Wardat. Then they went and saw Ali and Abdul Hakeem who had received injuries on their head and other parts of the body, and were bleeding. Alim was unconscious, Abdul Hakeem informed them that they had come to the machine for taking water where they were attacked and caused injuries by the above accused. He got carried All, and lodged the report. The motive as given in the F.I.R. Was that accused used to sell them, that they would commit murder of Alim and Abdul Hakeerh because they were not withdrawing the demand for hand of Mst. Zulekhan. Such challenge was given by Ali Gohar to Jalal Khan. Abdul Hakeem was present at the scene of offence. The above F.I.R. Was recorded by A.S.I. Muhammad Ismail P.W.14, and the F.I.R. Has been produced as Exh.13-A.
3. ' After the F.I.R. Was recorded, S.H.O. Muhammad Siddique P.W.15 took over investigation of the above case. He received information from Medical Officer Ghotki regarding death of Muhammad Alim at 11-35 a.m. And therefore, he issued special report under section 302, P.P.C. He then proceeded to the hospital and prepared Mashirnama of the dead body in piesence of Mashir Shah Nawaz and Jiand, the Mashirnama has been produced as Exh.17-B. He then handed over the dead body to Medical Officer through P.C. Muhammad Ishaque for post-mortem. Accused Haji Alif was lying in the hospital as injured who was shown as arrested accused by A.S.I. Muhammad Ismail. He is ''said to have produced blood-stained hatchet from heap of chaff about 1-1/2 furlongs away from the Wardat. The same was secured and sealed in presence of Haji Khan and Jiand. The Mashirnama was produced as Exh.20-A. On the same day he recorded statements of Chakar, Jalaluddin and Niaz under section 161, P.P.C. On the same day at 6-00 p.m. He arrested accused Imamuddin and Fazil near village Bishti Lashkar and prepared such Mashirnama, which has been produced Exh.20-B. He interrogated accused Imamuddin who led him and the Mashirs to the same place and produced blood-stained hatchet which he secured and sealed in presence of the same Mashirs. The Mashirnama has been produced as Exh.20-C. He then returned to Ghotki and recorded statement of constable Muhammad Ishaq. He handed over property to W.H.C. For safe custody. On 28-4-1981 he arrested accused Ghulam Hyder and Ibrahim in prsence of Mashirs H.C..
4. Ghulam Shabbir and P.C. Abdul Rashid under Mashirnama which has been produced as Exh.24-A.
5. On 1-5-1981 he arrested Ali Gohar in presence of Mashirs H.C. Ghula Shabbir and P.C. Qamaruddin under Mashirnama, which has been produced as Exh.24-B. On 4-5-1981 he received application of Mst. Mominat from D.S.P. Ghotki regarding innocence of accused Ali Gohar. He recorded statements of Mst. Mominat Allah Warrayo, Bakhtawar, Din Muhammad, Gul Hassan, Haji Mouro, Nizamuddin and Haji Aitbar in support of the application. On 6-5-1981 he recorded statement of Muhammad Aslam, Ghulam Muhammad, Jiand, Amir Bux, Ali Gohar and Mumtaz Shah in support of the application of Mst. Mominat. On 10-5-1981 he recorded statement of Mst. Zulekhan. On 12-5-1981 he submitted interim challan in the Court. On 21-5-1981 he recorded statement of P.Ws. Haji Ali Muhammad and Arab Pitafi. He also carried on the investigation of Crime No, 59 of 1981 in the counter-case lodged by Haji Alif. After necessary investigation final challan was submitted before the Court.
6. ' A formal charge was framed, against the appellants and the co-accused to which they pleaded not guilty.
7. ' At the trial prosecution examined complainant Muhammad Siddique, P.W.1, he has produced F.I.R.
8. As Exh.13-A, Chakar an eye-witness P.W.2, Abdul Hakeem eye-witness P.W.3, Niaz Muhammad P.W.4, Mashir Shah Nawaz.P.W.5, he has produced inquest report and Mashirnama of dead body as Exh.17-A and Exh.17-B. Mashir Jam P.W.6, he has produced Mashirnama of injuries of the deceased as Exh.18-A. Mashirnama of injuries of Abdul Hakeem as Exh.T8-B, Haji Khan P.W.8, he has produced Mashirnama of arrest of accused Imamuddin, and Fazil as Exh.20-A, production of blood-stained hatchet by Imamuddin as Exh.20-C, and production of blood-stained hatchet by accused Haji `Aid as Exh.20-D, Jiand co-Mashir P.W.9. He also acted as co-Mashir in respect of production of hatchet.
9. Dr. Bashir Ahmed P.W.10, he has produced injuries certificate regarding Abdul Hakeem as Exh.23-A and final opinion and X-ray plates as Exh.23-B, and post-mortem report as Exh.23-C, Ghulam Shabbir Mashir P.W.11, he has produced Mashirnama of arrest of Ghulam Hyder and Ibrahim as Exh.24-A, and Mashirnama of arrest of accused Ali Gohar as Exh.24-B. Muhammad Ishaque P.C.
10. P.W.7, Tapedar Ghous Bux P.W.13, he has produced sketch as Exh.16-A. A.S.I. Muhammad Ismail P.W.17, he had recorded F.I.R., S.H.O. Muhammad Sidiq P.W.15, he had carried on the investigation as mentioned above. He has produced F.I.R. Of accused Alif Khan as Exh.28-A, and Chemical Report as Exh.28-B.
11. ' After the close of prosecution case, statements of appellants and co-accused were recorded under section 342, Cr.P.C. In which they denied the allegations. Accused Imamuddin has produced certified copy of the-judgment in case State v. Atta Muhammad and Imamuddin as Exh.30-A, in order to show enmity with Mashir Jiand. However, no witness was examined by any of the appellants in their defence.
12. ' The learned trial Judge while relying upon the above evidence convicted the above appellants as described above, while co-accused Ali Gohar was acquitted.
13. ' Complainant Muhammad Siddique has supported the contents of F.I.R. Except that he has further stated that accused Haji Alif had given hatchet injuries to deceased Muhammad Alim while Imamuddin had given hatcheoblow on the head of Abdul Hakeem. P.W. Abdul Hakeem and Chakkar have supported the complaint so far ocular evidence is concerned.
14. ' Dr. Bashir Ahmed P.W.10 had carried on the post-mortem on the dead body of deceased Muhammad Alim, and according to him he had found the following injuries on the person of the deceased:-
(1) Lacerated wound on the right side of forehead 8 c.m. x 4 c.m. Scalp deep. On examination there was no-damage to bones. The right eye at its outer aspect was black and swollen, and no sternal damage of eye.
(2) Incised wound on the left side of head straight very close to mid line going towards back and left side of skull 12 c.m. x 3 c.m. x bone was cut in the same line, all meninges were cut and damaged brain tissue was visible. Contusion on the right forearm 10 c.m. x 8 c.m., it was swollen and on examination there was fracture of one of the bones of right forearm.
(4) Incised wound on the upper 1/4 of left forearm 3 c.m. x-1/2 c.m. x muscle deep. On examination there was no damage to bones.
15. (5)acerated wound on the front of upper left leg 3 c.m. x 1 c.m. x bone deep and it was advised for X-Ray of left leg and left knee joint.
16. ' According to him the injuries Nos. 2 and 4 were caused by sharp cutting weapon such as hatchet, while the rest were caused with blunt and hard substance. The -time between injuries and death was about 5 and a half hours, while time between death and post-mortem about 2 hours.
17. According to him deceased died due to injuries causing damage to the brain and other parts of the body resulting in bleeding, hemorrhage, and shock. Injury No,2 caused by hatchet was sufficient to cause death in ordinary course of life. He has produced the initial medical certificate and post-mortem report as Exh.23-C and Exh.23-D.
18. ' He had also examined injured Abdul Hakeem P.W., and according to him he had one lacerated wound, and four contusions on his person, and the same were simple in nature. The injuries appeared to have been caused by hard and blunt substance. He has produced initial medical certificate and final medical certificate as Exhs.23-A and 23-C.
19. ' I have heard Mr. Muhammad Hayat Junejo learned counsel appearing for the appellants, Mr. Masood Shaharyar learned counsel appearing for the State, and have also gone through the R&P of the case.
20. ' It was contended by Mr. Muhammad Hayat Junejo learned counsel appearing for the appellants, that ocular evidence was interested, inimical and was not relied upon in respect of co-accused Ali Gohar, and therefore, it could not be relied upon without independent corroboration. It was further contended that as far as recovery of hatchet from appellant Haji Alif and Imamuddin was concerned, the two Mashirs of the recovery did not support the recovery of hatchet from Haji Alif, while Mashir Jaind has supported the recovery of hatchet from appellant Imamuddin, but the two Mashirs being close relations of the deceased, and Mashir Jaind had recorded enmity with appellant Imamuddin and, therefore, no reliance could be placed on his evidence regarding recovery of hatchet from Imamuddin. It was further contended that the chemical report Exh.28-D shows that out of two hatchets sent to the chemical examiner, one was found blood-stained, while the blood on the other was disintegrated. Neither Mashirs nor the S.H.O. Had pin-pointed as to which hatchet was recovered from which accused, and therefore, it cannot he said as to who produced the hatchet on which blood was found by the Chemical Examiner. As far as the motive was concerned, it could be the motive for committing murder of deceased Muhammad Alim inasmuch as according to the prosecution the appellants had promised to give hand of Mst.
21. Zulekhan daughter of appellant Ghulam Hyder to Hakim Ali, and therefore, the grievance, if any, was on the side of complainant but the accused had no grievance. In support of his contention the learned counsel has relied upon the cases reported in PLD 1973 SC 321, PLD 1985 SC 11, and 1986 SCM R 730.
22. ' Mr. Masood Shaharyar learned counsel appearing for the State has contended that no doubt the complainant and the witnesses are inter related but their evidence cannot be ruled out of consideration on this score alone. He has further contended that as far as the recovery was concerned, the evidence of S.H.O. Was sufficient to prove the recovery specially when there was no allegation from the accused against him. As far as motive was concerned, he agreed that the motive was not strong enough to be the cause of committing murder.
23. I have considered the contentions of the learned counsel. It is an admitted position that complainant is cousin of deceased Muhammad Alim, P.W. Abdul Hakeem is son of deceased, while P.W. Chakar is related to complainant party. As far as P.W. Niaz Muhammad was concerned his evidence was on the point of motive only. It is the case of prosecution that the relations of the parties were strained due to refusal of the appellants to give hand of Mst. Zulekhan to Hakeem Ali a relation of the complainant. It is an admitted position that Mashir Jaind was an eye-witness against appellant Imamuddin in case under sections 380 and 450, P.P.C., and this fact is supported by the copy of judgment which has been produced as Exh.30-A. Moreover, the evidence of complainant and P.Ws. Is in conflict with medical evidence. In the F.I.R. It was the case of the complainant that appellant Haji Alif and Imamuddin had given hatchet blows to deceased Muhammad Alim, but in the Court he has not stated that accused Imamuddin had given hatchet blow to deceased Muhammad Alim, but ascribed the role of causing hatchet injuries to Haji Alif, P.W. Chakar has deposed that Haji Alif gave two hatchet blows to Muhammad Alim, and Imamuddin also gave hatchet blows one on the thigh and other on the arm of the deceased, P.W.
24. Abdul Hakim stated that he was given hatchet blow on his head by Imamuddin but no such incised injury was found by the Medical Officer on his person. In cross-examination he has further deposed that accused Haji Alif gave two hatchet blows to Muhammad Alim so also to Imamuddin. He has further deposed that co-accused Ali Gohar (since acquitted) had instigated the present appellant, but this part of his evidence was not relied upon and Ali Gohar has been acquitted.
25. ' In the case of Bagh Ali and others v. The State PLD 1973 SC 321 it was observed by their Lordships of the Supreme Court that:- ' Appraisment of the evidence of the eye-witnesses has to be based upon full consideration and evaluation of all the circumstances appearing in the case where there is total absence of physical circumstance to connect the accused person with the crime and there is background of enmity. In such a situation the ocular evidence must in order to carry conviction on a capital charge come from an unimpeachable source. If such a source is not available, then it must be supported by some strong circumstance which would enable the Court to overcome the inherent doubt which such evidence must necessarily create.
26. ' In the case of Ghulam Sikandar and 7 others v. Mamaraz Khan and others PLD 1985 SC 11 it was observed by their Lordships of the Supreme Court that:- "Where a witness is interested and also inimical, and is thus likely to falsely implicate one or other accused, it was essential to seek independent corroboration regarding each one of other accused."
27. ' In the case of Ali Gohar and others v. The State 1986 SCMR 730, it was observed by their Lordships of the Supreme Court that:- "It is, therefore, clear to us that the two eye-witnesses were not independent witnesses as they were hostile to the accused. What is more is that there is no evidence of circumstances to corroborate the testimony of these two witnesses. The contradictions in their version of the occurrence with the medical evidence, and the plausibility of their statements in this regard assumed importance in the context of this situation, namely, that they are interested witnesses and there is no evidence of corroboration. As pointed by the learned Judge in the High Court, in such circumstances, the primary question to be examined by the Ciurt is the intrinsic soundness of their testimony, for it is only when having regard to all the sorrounding circumstance if their testimony is found to be intrinsically credit worthy then it would be possible to dispense with the corroboration as the general rule of prudence demands in the case of interested witnesses. One of the principles laid down to determine the intrinsic worth of the testimony of such witness is to determine whether the number of persons named by him to have participated in the occurrence seems consistent with the independent evidence such as medical evidence. In case of any exaggeration pointed out by other circumstances of the case, corroboration of the testimony of interested witness is indispensible."
28. ' In view of the above position I am of the considered view that the ocular testimony was not such which could be relied upon without independent B corroboration.
29. As far as the recovery of hatchet was concerned, Mashir Haji Khan P.W.8 has not supported the recovery of hatchet from appellant Haji Alif and Imamuddin, while Mashir Jaind has supported the recovery of hatchet only from appellant Imamuddin. There is recorded enmity between Mashir Jaind and Imamuddin inasmuch as Mashir Jaind was an eye-witness against Imamuddin in a case under sections 380 and 459, P.P.C. In which appellant was acquitted. Certified copy of the judgment has been produced as Exh.30-A. Even the chemical report shows that only one hatchet was blood-stained while blood on other hatchet was disintegrated, and unfortunately there is nothing in the evidence of Mashir as well as S.H.O. To show as to which accused, the bloodstained hatchet belonged. In this view of the matter even the evidence of S.H.O. Is of no avail to the prosecution. The evidence of recovery is therefore, ruled out from the consideration.
30. ' Adverting to the motive it is clear from the evidence that the appellants had promised to give hand of Mst. Zulekhan to Hakim a relation of the complainant party but later on they did not fulfill their promise, she was married with Rabban, and therefore, the grievance if any, was on the side of the complainant party, and not on the side of appellants.
31. ' In view of the above discussion and legal position, I am of the considered view that the prosecution had failed to prove its case against the appellants beyond reasonable doubt, and therefore, the appeal is allowed, conviction and sentences of the appellants are set aside, and they are acquitted of the charge. They shall be released forthwith if not required in any other case.